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Yes, there has long been an argument that when you claim ESA you are claiming one benefit. DWP like to argue that you're either claiming contributory or means-tested or both. They have said that you need to specify which and it's not their problem if you get it wrong. Thus lots of people who claimed contributory should also have had means-tested from day one (mostly single people with no children).

A number of UT decision have decided that ESA is one benefit and the DWP approach is wrong. Finally, after some delay, they are trawling and fixing.

I took one of the UT cases for a client which decided this was the case

Hi there. I was told about this 'error' last week by my daughter who knew i had been on I.B then been changed to esa Feb 2014. So I rang the D.W.P simply to ask them the question "Do you owe me some money". I thought that was a reasonable question considering the dates I had. The bloke said they had had a lot of people enquiring about it and they would send me a form to fill in. Fair enough I thought a form. Probably a simple one page to state when you switched over etc. How stupid of me to think such a thing. The form came through its called a ESA3 which is a change of circumstance form for ESA49 PAGES,,!! The form is exactly that, a change of circumstance form. Obviously I rang them and said you have sent me the wrong form, to which I was told that the ESA3 form is the form they have been told to send out to claimants of this underpayment from THEM. I tried to point out to them that all i wanted was a simple question answered "Do you owe me money" i aas told that is the form and thats that.Now when you see this form, which a lot of us on here have filled in and taken all the stress and anxiety that comes with it. When they send you that, for money that they haven't paid you, what do you think? If I fill this in are they going to call me in for another assessment and treat this like a whole new claim for ESA?The form has absolutely NOTHING ! ZERO! ZILCH! to do with their underpaying you ESAor I.B whichever it is. My heads so scrambled at the moment I don't even know which one it is. But the form has nothing NOTHING to do with the claim well not even a claim. It's a bloody question. Do you owe me money? Oh ok sir I'll send you a 49 page form to fill in and then I'll tell you. So not a YES or a NO? "Sorry sir, you must fill in this claim form that has nothing to do with what you are requesting, before I can answer that highly technical question.What the hell is all this all about? I truly believe they are trying to scare you into not claiming it... It's beyond disgusting.I shall be sending a copy of this to Frank Field who chairs the relevant commons committee.

First of all DWP have thus far refused to disclose the exact nature of the error. We know it's means-tested ESA. We're guessing it's not just a specific premium but is more to do with not assessing people for means-tested when they claimed contributory. We're guessing but until we get a response to an FoI request (Benefits and Work have certainly done one) we don't really know.

Now, regardless of whether it's the former or the latter, the amount payable will vary from person to person because it's a means-tested benefit based on income and capital and everyone's income and capital and circumstances will be different i.e. exactly what I put in my last post.

If you were, during the period in question, only on contributory ESA and maybe PIP then how exactly would DWP know your exact circumstances throughout the period they think they've underpaid you? Neither benefit require you to declare income or capital. Any info. they did have would likely be years out of date.

The answer to that is that they have no way of knowing what your income and capital was for that period. Thus, they have to ask you. It could well be, for example, that if they looked at your circumstances on the date of claim then you qualified but a week later you won £50,000 on the Premium Bonds and no longer did. How would they know?

Now, legally speaking, they could send out a form asking you to declare your circumstances throughout every week of the period they are considering paying for. They could also ask you to back that up with evidence such as bank statements etc. That form doesn't exist. To devise, agree, print and post that form could take several months and cost a significant amount of money. It would most likely be much longer than what has been sent out.

In those circumstances the better option would be to use an existing form which allows you to declare your circumstances without perhaps as much scrutiny as the other route. If your income or capital went up in the period in question then a snapshot of what it was at the outset will see you probably benefit more than you might otherwise. If it varied then you may want to give them more detail in order to get correct arrears.

So, all things considered, whilst the form is long and detailed, using it does seem a proportionate response.

This is the first instance I've seen of how they're approaching this so it is possible an ESA 3 was the wrong form/response but it does seem a credible one in all the circumstances.

Now, the question then arises of could they use a change of circumstances form to allege a change of circumstances and trigger another assessment?

In theory, yes, absolutely.

In practice, it seems very unlikely. This is a form asking about income and capital throughout the period. It has been sent out to determine (we think) entitlement to means-tested ESA for a past period. Only if anything was written in it which raised a question as to capability for work would it be treated as raising a question about the medical aspect.

For example, if declaring income and capital revealed you'd been undertaking work which hadn't been approved as permitted work. If you complained about filling in the form inconveniencing you because of your impairments but then listed one they were unaware of or a surgery you'd recently had which they were also unaware of. Those sorts of things would legitimately allow the claim to be opened up to reassessment.

In cases like this it's better to let DWP trawl rather than proactively chase as anything said inadvertently over the phone could also trigger reassessment.

Fill in the form as best you can and, if you disagree with any subsequent award, you will have the right to a mandatory reconsideration etc. albeit that to prove any calculations as wrong or too simplistic the onus will be on you to evidence that.

Thanks for the reply Mike, Now in reply let's start with the Means tested benefit. They knew at the time what your (3rd person) 'Means' were and im not sure but have a feeling that they can ask for your bank statements at anytime. I know the housing benefit can and do. The same applies to housing tax..And by law you have to let them know of changes.I'll do the rest later Mike, I have a disability that affects my concentration and short term Memory. Im burnt out at the mo.

No problem. Apologies for the length of the post. Just wanted to make sure it was all covered.

At best they will have a snapshot of income and capital at the start of a contributory claim. In most cases they won't else they'd have paid up. In order to pay benefit after that period they will need to know what, if anything, subsequently changed. So, they have to ask.

They can only ask for bank details (account number and sort code etc.) in connection with any claim you want paid into a bank account. They can ask for bank statements in connection with means-tested benefits but they only do that at the outset of a claim when you are expected to evidence your entitlement or if they are in receipt of information which suggests something has changed (from you or someone else).

That's what HB and CTR do. Only at the outset; on renewal or upon receipt of new information. Not at "any" time.